The Vanishing Trial: a Problem in Need of Solution?
| Publication year | 2021 |
| Pages | 1 |
79 CBJ 1. THE VANISHING TRIAL: A PROBLEM IN NEED OF SOLUTION?
VOLUME 79, NO. 1
Observant readers of the New York Times on Sunday, December 14, 2003 would have seen an article (indeed, a front-page article!) that provided what I believe is the first national press coverage of an important public policy issue that until then had largely received attention only from a coterie of judges - in particular, federal judges - and a limited number of scholars.(fn1) That same weekend, the American Bar Association ("ABA") held the first national symposium devoted entirely to this issue.(fn2) The symposium drew a wide spectrum of participants from the Bar, the Judiciary and the Academy, and they spent an entire weekend discussing the nature and extent of this issue, its likely causes, and possible responses. What is this issue that has drawn the attention of such venerable institutions as the New York Times and the ABA? It is the Vanishing Trial; or, as some judges nervously ask, "Can we still be called 'trial judges' if we don't try cases?"
The number of trials held each year in courts across the country, both state and federal, is declining at what to some is an alarming rate, all at the same time that nominal case filings are increasing. This phenomenon, which the data show is quite real, has potentially great implications for our justice system - for the methods we have devised to resolve disputes; for the institutions we have created to entertain disputes; for the training of lawyers to represent clients in those disputes; and even for the body of law (for example, the rules
* United States District Judge, District of Connecticut. This article was originally delivered as a speech to The Benchers, a group of lawyers, judges and academics, in New Haven on January 22, 2004. The author also delivered a shortened version of this speech at the Connecticut Bar Foundation's Annual Meeting in June 2005.
1 See Adam Liptak, U.S. Suits Multiply, but Fewer Ever Get to Trial, Study Says, N. Y. TIMES, Dec. 14, 2003, at A1 (hereinafter "Liptak").
2 Symposium to Address the Impact of "Vanishing Trials" on the Justice System, ABA SECT. OF LIT. (Dec. 13-15,2003). The articles published as a result of the ABA Symposium can be found in volume 1, Number 3 of the JOURNAL OF EMPIRICAL LEGAL STUDIES (Nov. 2004), a magnificent work that I commend to anyone interested in this subject.
of evidence) that we have developed to assist parties and juries to resolve disputes.
Indeed, according to Chief Judge William Young, of the United States District Court for the District of Massachusetts, what the existing data show "is nothing less than the passing of the common law adversarial system that is uniquely American."(fn3) As Chief Judge Young lamented in an article that he titled An Open Letter to U.S. District Judges, "This is the most profound change in our jurisprudence in the history of the Republic."(fn4) And, he warned darkly, "History will not judge kindly that generation of jurists that allow this 'purest example of democracy in action,' this 'stunning experiment in direct popular rule' [- the civil jury -] to wither away."(fn5)
With less emotionally charged rhetoric but in a similar vein, Judge Patrick Higginbotham of the United States Court of Appeals for the Fifth Circuit has also described the decline of trials as one of the most significant changes in the American judicial system since the Nation's founding. In an article aptly titled So Why Do We Call Them Trial Courts?, Judge Higginbotham describes the disappearance of trials as "a change in [the] very architecture" of our judicial system, a system for resolving disputes that, he notes, has largely remained constant for over 200 years.(fn6) No more.
I propose in this article to summarize some of the data that illustrate vividly this "change in architecture." I will then consider some of the likely causes of this change and discuss various views on whether the vanishing trial phenomenon is a problem in need of solution or not - that is, whether we should care about this development as passionately as Judge Higginbotham and Chief Judge Young do, and why. My hope is that this discussion will prompt an examination of some of the possible solutions that have been proposed to stem the decline in the number of trials and whether such "cures" are
3 Liptak, supra note 1, at A1.
4 William G. Young, An Open Letter to U.S. District Judges, 50 FEDERAL LAWYER 30 (July 2003) (hereinafter "Young").
5 Id. at33.
6 Patrick E. Higginbotham, So Why Do We Call Them Trial Courts?, 55 SMU L. REV. 1405, 1407 (2002) (hereinafter "Higginbotham").
likely to be more problematic than the "disease" itself.
Before beginning, however, I would be remiss if I did not acknowledge my debt to judges like Patrick Higginbotham and William Young and to scholars like Marc Galanter of the University of Wisconsin Law School(fn7) and others whom I will cite below. These individuals have done the hard work of pulling together the relevant data and thinking deeply about what it all means. In this article, I merely highlight their insights, data and observations. I do not pretend myself to have done any original thinking or research into this important question. However, given the readership of this venerable publication, I do hope to stimulate debate within the Connecticut Bar and Judiciary regarding this important development.
I. THE NUMBERS
In thinking about the data on the decline in trials, I am reminded of the debate that ensued over global warming. I do not for a moment suggest that the vanishing trial phenomenon is anything so cataclysmic as global warming. But there are parallels in the trajectory of the debate over the two issues.
You will recall that, at first, there were a few scientists who sounded an alarm about what they saw in the data as an emerging trend. These brave souls, who readily admitted their data were incomplete and in need of further study, were generally met with a mixture of skepticism, criticism and indifference. There followed a period of further study and debate, during which alternative explanations of existing data were offered and additional data were gathered. Indifference gave way to sharp debate. Over time, however, the emerging trends became too clear to deny and attention then turned to the causes of the warming, the harm it might produce and the methods of containing, or possibly reversing, the trend.
As with global warming, initially some far-sighted members of the judiciary noticed and commented upon what
7 See, e.g., Marc Galanter, The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts, 1 J. EMPIRICAL LEGAL STUD. 459 (Nov.
2004) (hereinafter "Galanter").
appeared to be a systemic decline in trials. However, others remained skeptical or, more typically, indifferent. As time passed, however, more data were collected and the trends became increasingly clear. While we still need better data, particularly at the state level, the trend is now not in doubt. As Professor Marc Galanter has documented, the number of trials has been declining for three decades in courts across the country, and the disappearance of trials holds true both for state and federal courts, for all regions of the country, for jury and non-jury cases, and for all categories of civil and criminal cases.(fn8) Although there have been ups and downs in the statistics across the three decades, over the last ten years, the trend has been decidedly and rapidly downward. Therefore, the question no longer is whether there is a decline in the number of trials; instead, we must now focus on: why this has happened; whether it is an entirely negative development; and whether there are sensible ways of containing or reversing the trend. And, as was true with global warming, to answer those questions in any meaningful manner, we will need much better information than we now have.
The statistics we do have, however, show a remarkably clear portrait. According to data collected by the Administrative Office of the United States Courts (the "AO") - the administrative arm of the federal courts - in the thirty-year period from 1970 through 1999, the total number of civil filings in federal courts rose by 152%. (fn9) Yet, in the same time period, the number of cases that were tried by federal judges dropped by 20%.(fn10) As Judge Higginbotham reports in his article, the decline in the absolute number of trials over the past thirty years that is shown in this data is also observed in a decline in the rate of trials, from about 12% of all civil cases in 1970 to somewhat less than 3% by 1999.(fn11)
As dramatic as those statistics may seem, Professor Galanter reports, in an article prepared following the ABA symposium, that by the end of 2002, the rate of trials in civil
8 See id. at 459-60.
9 Higginbotham, supra note 6, at 1408.
10 Id.
11 Id. at 1407.
cases in federal courts had declined even further, to a paltry 1.8% of all civil cases filed, a figure that the AO reports has stayed about the same for 2003.(fn12) Notably, Professor Galanter reports that, at the time of the adoption of the
Federal Rules of Civil Procedure in 1938, the rate of trial for
civil cases was nearly 19%.(fn13) Moreover, Professor Galanter notes (as Judge Higginbotham did before him) that the implosion in federal court trials is not limited to a shrinkage in the overall percentage of cases tried - which would be influenced by the increased number of case filings; it also involves a shrinkage in the absolute number of cases disposed of by trial.(fn14) Thus, Professor Galanter reports that, in 1962, the federal district courts disposed of approximately 50,000 cases and, in 2002, they...
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